A July 4 DOJ Assault on National and State Sovereignty

Last I heard, July 4 was a celebration of our country's breaking free from the dictates of foreign powers. I guess the Department of Justice didn't get the memo.

As the Independence Day weekend begins, the Department has filed this astounding application to stay the execution of a Mexican national by the State of Texas. The gist of the application -- filed under the All Writs Act, of all things -- is that Texas must be required to defer the execution until the U. S. Senate has had the opportunity to consider, and presumably enact, a bill very recently, and hurriedly, introduced by Senator Leahy. The bill (attached as an Appendix to the application) would expand the power of district courts to delay state executions in order to provide more time for federal review of consular notification claims. Such claims are assertions by the defendant, usually abetted by the foreign government, that the defendant was denied his right under international law and treaty to consult with, and obtain the assistance of, his government's consular representatives.

One would think the Department would have at least a smidgen of modesty in these matters, having taken a pasting during the Bush Administration in Medellin v. Texas, 552 U.S. 491 (2008). But modesty is not the Department's thing. Still less is respect for state sovereignty, in the face of international blustering (and more to the point, I strongly suspect, in light of the AG's and the Solicitor General's determined, personal opposition to the death penalty).

But what is simply mind-boggling about this particular application is that it seeks a stay pending the Senate's possible consideration of the Leahy bill, a request made without any assurance, or anything approaching an assurance, that the bill actually will be considered, much less passed; or that any similar bill will even be introduced in the House, or considered, voted upon or adopted there.

The reason such assurances are not given is that they would be guesses at best and (more likely) pure fiction. In over two decades as an officer of the Department, I never heard of, much less saw filed, an application to the Supreme Court to stop a state execution (or do anything at all) based on the possibility that one chamber of the Congress might adopt a bill. It's like asking the Court to act based on the possibility that half an earthquake might occur.

It's outright nonsense. It would be an enormous push for DOJ to seek an All Writs Act stay even if it submitted an affidavit that a given piece of legislation was imminently to be signed into law. To ask the Supreme Court to enter a stay based on the possible/maybe/might happen/could happen action of one house of the Congress is flabbergasting.

It's not just that the Court should summarily deny this seat-of-the-pants, take-a-guess application. It should admonish the Department for having filed it, and direct the Clerk to return it. Those actions won't happen, but they're what the Department has earned.

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Leal has been in the US since he was two years old. The idea that he had some substantive rights under this treaty is simply nonsense.

And Medellin was three years ago. Congress has had a while.

Of course, I won't be surprised if the Supreme Court lawlessly stays this execution. Given the fact that this Court has stayed executions where the guy missed his timeline to file for a rehearing and has stayed an execution after a killer has had his full panoply of appeals (both federal and state), we cannot be sure about anything this Court will do. It seems to have bent over backwards before. And it doesn't even deign to explain to the State or the victims' families why it pulls the rug out from under their legitimate expectations.

The really pathetic thing is that the Mexican people likely don't even care. The reaction to the Medellin execution was basically "meh," something, of course, you'll find nowhere in the pages of the Times.

And if DOJ cared so much about an "irritant" to Mexican-American relations, perhaps they'd get to the bottom of "Fast and Furious" and apologize to the Mexicans for that, or pointedly question why Mexico haled us into the kangaroo ICJ court in the first place.